Request By:
Kenneth E. Hollis
General Counsel
Kentucky Department of Labor
127 Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Martin Glazer, Assistant Attorney General
You seek an interpretation as to whether the Kentucky Department of Justice has sole jurisdiction over regulating unsafe vehicles on public roads, or whether KOSHP (Kentucky Occupational Safety and Health Program) may exercise dual jurisdiction in relation to unsafe vehicles driven by employees for work purposes.
This request has arisen as a result of complaints received by the Kentucky Department of Labor from employees forced to drive defective and unsafe vehicles on public high-ways or be fired for refusing to do so.
You point out that presently KOSHP has, by regulation, only addressed the question of unsafe vehicles operated on an off-highway job site and has no regulation for vehicles operated on a public highway [803 KAR 2:030 and its federal genesis - 29CFR 1026.600 - 602].
You also point out that KRS 16.060 - .065 and KRS Chapter 189 give the Department of Justice jurisdiction over an employee [and others] operating a defective vehicle on the open road.
You believe that only the Department of Justice has jurisdiction of on-the-road vehicles (in safety matters).
KRS Chapter 338 and regulations that have been promulgated thereunder do not specifically limit safety jurisdiction of the Department of Labor only to "off the road" employees. KRS 338.021 provides that the Chapter applies to all employers, employees, and places of employment except United States government employees, and those over which federal agencies other than the United States Department of Labor exercise statutory authority to prescribe and enforce standards or regulations affecting occupational safety and health.
KRS 338.015(4) defines "occupational safety and health hazard" as "any practice or condition in a place of employment which may be deemed detrimental to the safety and health of employes." (Emphasis supplied.)
Subsection (3) of that same statute defines "occupational safety and health standard" as including "conditions," practices," "means," "methods," "operations," or "processes."
So, it seems that the fact an employee is operating a vehicle on a highway does not limit the Department of Labor from promulgating and enforcing safety standards concerning practices and procedures arising out of the use of a motor vehicle in an employment situation, even away from a fixed off-highway site.
That does not mean that the Department of Labor is required to enforce standards on highways, if there are other adequate safety enforcement machinery available and in use. For that matter, it is probable that the Department of Labor has not promulgated a safety standard for every conceivable job situation, even though the state act has been in existence since 1972.
However, in the case of the Department of Justice's jurisdiction and the Bureau of State Police, those agencies are primarily concerned with enforcement of criminal statutes. The fines assessed in KRS Chapter 189 are primarily criminal fines assessed by a court after a criminal trial before a judge or jury.
Therefore, at such time as the aforesaid entities do promulgate regulations, etc., concerning motor vehicles, your agency would not have jurisdiction over the subject matter thereafter.
In the meantime, you should be governed by KRS 15.605 to 15.635, dealing with prevention of dual and overlapping inspections by several enforcement agencies.
Under KRS 15.610 you could enter into an agreement with other agencies (such as Justice and Transportation) to refrain from inspecting vehicles while used on the highways and allow Justice and Transportation to do so while retaining the right to inspect vehicular conditions used at off-highway sites.
CONCLUSION
1. You have the right to conduct investigations of safety practices, procedures, and conditions involving the use of highway vehicles, even though other agencies may have concurrent jurisdiction.
2. You may refrain from using that jurisdiction by agreement with those other agencies in accordance with KRS 15.610.
3. And, you will lose such jurisdiction at such time as the Bureau of Vehicle Regulation and its Commission promulgate regulations which specifically supersede your statutory authority via KRS 189.770.